action? The answer to these questions depends upon whether or not there is consideration for the promise sought to be enforced. It should be apparent that, as a matter of public policy, the law should not hold a person liable for refusing to make a gift which he had previously promised to make, or for his failure to keep many kinds of social or business engagements. This does not imply that society should sanction the deliberate refusal to carry out one's promises. In fact, just the contrary is true. Every one instinctively expects a person, who has said that he would do a certain thing, actually to carry out his promise. Not only that, but society goes further, and expects that a person will do a great many things; that he will conduct himself in a certain manner, even though he has not promised to do so, and his failure so to do calls forth social condemnation. Social and business life would be quite different, if established customs were not almost universally complied with. But it is quite a different thing for the law to provide that, unless a person does keep all of his promises, he must pay damages to the individual whose expectations have been disappointed. The law follows custom, but never catches up with all customs. It is well that this is so, because the law should not undertake to do the impossible. The law should and does fix minimum standards of conduct, and, for violations of these standards, persons guilty thereof are subjected to various penalties. And so, with respect to the liability for the failure to perform one's promise, the law allows one to break some promises. It permits a violation of social and business customs and of promises up to a certain point; but, beyond that, promises cannot be broken without liability for the damage caused. Our problem in this chapter is to find out where this point is. This involves the determination of the nature of consideration, because only those promises founded. upon consideration are enforceable. The question what constitutes consideration is not altogether free from difficulty. In the ordinary case, no doubt, the presence, or absence, of consideration is easily discoverable, but in the border line cases there exists greater doubt. A great deal of the difficulty in the subject of consideration arises from the fact that there is no single generalized statement of the doctrine of consideration that has received universal acceptance. Courts and writers differ in their phraseology of the rule. In fact, no definition of consideration could be so framed as to convey an accurate and complete notion of the nature of this requisite to the validity of a contract. That may be obtained only by an examination of the cases where the doctrine of consideration has been discussed and applied. But at this point it will be of some assistance to note a few definitions of this term. Sir William R. Anson has defined consideration as "something done, forborne, or suffered, or promised to be done, forborne, or suffered, by the promisee, in respect of the promise." 1 1 Anson on Contract (3d Am. Ed.) § 118. 1 Professor Williston has stated that "there may still be found. several somewhat distinct and conflicting ideas as to what con-stitutes a sufficient consideration. * The idea that the consideration is the price requested and received by the promisor for the promise, * * * is undoubtedly the fundamental and, as to most cases, the generally accepted idea of consideration at the present time.' "2 Professor Corbin has said: "No single definition that has been given serves to explain all the currently approved decisions. Consideration is a fact other than a seal, which, when it accompanies a promise, operates to create a legal duty in the promisor. Courts may give operation (1) to facts long antecedent to the promise; (2) to contemporaneous facts regarded as the equivalent of and in exchange for the promise; and (3) to subsequent facts consisting of acts in reliance on the promise. In all contract law our problem is to determine what facts will operate to create legal duties and other legal relations. We find at the outset that bare words of promise do not so operate. Our problem then becomes one of determining what facts must accompany words in order to create a legal duty and other legal relations. We must know what these facts are, in order that we can properly predict the enforcement, reparation, either specific or compensatory, in case of non-performance. We are looking for a sufficient cause or reason for the legal enforcement of a promise. This problem was also before the Roman lawyers, and it must exist in all systems of law. With. us it is called the problem of consideration." 3 The cases following present a series of problems with respect tothe doctrine of consideration.* SECTION 2.-CONSIDERATION IN UNILATERAL CONTRACTS HAMER v. SIDWAY. (Court of Appeals of New York, 1891. 124 N. Y. 538, 27 N. E. 256, PARKER, J. The question which provoked the most discussion by counsel on this appeal, and which lies at the foundation of plaintiff's asserted right of recovery, is whether by virtue of a contract defendant's testator, William E. Story, became indebted to his nephew, William E. Story, 2d, on his twenty-first birthday in the sum of $5,000. The trial court found as a fact that "on the 20th day of March, 1869, * * * William E. Story agreed to and with William E. Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing,. 2 Williston on Contracts, § 100. 3 "Does a Pre-existing Duty Defeat Consideration?" by Arthur L. Corbin, 27 Yale Law Journal, 362. 4 For a bibliography of the leading discussions of the doctrine of consideration, see notes to chapter IV of Anson on Contract, Corbin's Edition.. and playing cards or billiards for money until he should become twentyone years of age, then he, the said William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,000 for such refraining, to which the said William E. Story, 2d, agreed," and that he "in all things fully performed his part of said agreement." The defendant contends that the contract was without consideration to support it and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited; that that which he did was best for him to do, independently of his uncle's promise-and insists that it follows that, unless the promisor was benefited, the contract was without consideration, a contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no consideration to support the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The Exchequer Chamber in 1875 defined "consideration" as follows: "A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other." Courts "will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him." Anson, Cont. 63. "In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise." Pars. Cont. *444. "Any damage, or suspension, or forbearance of a right will be sufficient to sustain a promise." 2 Kent, Comm. (12th Ed.) *465. Pollock in his work on Contracts (page 166), after citing the definition given by the exchequer chamber, already quoted, says: "The second branch of this judicial description is really the most important one. 'Consideration' means not so much that one party is profiting as that the other abandons some legal right in the present, or limits his legal freedom of action in the future, as an inducement for the promise of the first." Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the strength of the promise of the testator that for such forbearance he would give him $5,000. We need not speculate on the effort which may have been required to give up the use of those stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now, having fully per-. formed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it; but, were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been, support the position we have taken. [Judgment for plaintiff affirmed.] WHITE, Executor of Bluett, v. BLUETT. (Court of Exchequer, 1853. 2 C. L. R. 301.) Assumpsit by the plaintiff, as surviving executor of John Bluett. The first count was on a promissory note, whereby the defendant promised to pay the said John Bluett, on demand, the sum of £50, with interest. The second count was for money payable by defendant to John Bluett in his lifetime, for money lent by John Bluett to the defendant. Defendant pleaded that the said John Bluett was defendant's father, and that after the accruing of the causes of action, the defendant complained to John Bluett, that he, the defendant, had not received at his hands so much money or so many advantages as the other children of John Bluett, and certain controversies arose between John Bluett and defendant concerning these matters, and that John Bluett admitted that such complaints were well founded; and thereupon afterwards it was agreed between John Bluett and defendant that defendant should forever cease to make such complaints, and that in consideration thereof, and in order to do justice to the defendant, and also out of his natural love and affection towards the defendant, he, John Bluett, would discharge the defendant of his liability on said causes of action. Clarke, counsel for defendant, argued that a promise is consideration for a promise. POLLOCK, C. B. I am of opinion that the plaintiff is entitled to judgment. I think the plea is bad, as it sets up an agreement totally without consideration. The principle contended for at the bar on behalf of the defendant is correct; but it has been pushed to the extreme of absurdity. If we attend to mere language-to words simply, and not to reason-it may be that there is a foundation for the argument which has just been addressed to the court. Mr. Clarke says that the son had a right to complain, and to say to his father, "I will cease to complain if you will give up your claim on that note;" and that having ceased to complain on his father's answering "Yes," there was a binding agreement, with a good consideration, between them. If this plea can be supported, there are many cases of a most absurd character which might be suggested as affording equally good ground of consideration with that in the present plea. For instance, suppose a man to be in the habit of walking a great deal on a particular highway, and to have been remonstrated with by the surveyor because he used the road more than his neighbors and gave more trouble-if these two. were to agree that the one should pay a sum of money, and the other should abstain from complaining of his walking on the highway more than other people, it might just as well be argued that that would be an agreement on which an action would lie. So, again, if we take the case of a bill with two joint makers, one of whom is surety for the other; suppose the surety to be always complaining to the holder that he is only surety, and not answerable, and that thereon the holder should say to him, "Very well, if you will cease from pouring these complaints into my ears, and say no more to me about the hardship of being sued for the debt of another, I will promise not to sue you," could such an agreement stand? It appears to me that it could not; and when you examine this plea, it is clear that no consideration for any agreement is alleged on the face of it. If, on the part of the B.& B.BUS.LAW-7 father, there was nothing more than an unequal distribution of his property, he had a perfect right to do that as he pleases; and the son had no right whatever to complain of it. That is the fallacy of Mr. Clarke's argument, which assumed that the son had a right to complain. He had no such right; and when he promised to abstain from that course, he only promised not to do that which he was bound without any such promise, to abstain from doing. As the case was pressed on our attention in the argument at the bar, I have gone thus fully into it, to show that I entered into and appreciated that argument; but I confess that I never met with a clearer case. KIRKSEY v. KIRKSEY. (Supreme Court of Alabama, 1845. 8 Ala. 131.) Assumpsit by the defendant, against the plaintiff in error. The question is presented in this court, upon a case agreed, which shows the following facts: The plaintiff was the wife of defendant's brother, but had for some time been a widow, and had several children. In 1840, the plaintiff resided on public land, under a contract of lease, she had held over, and was comfortably settled, and would have attempted to secure the land she lived on. The defendant resided in Talladega county, some sixty or seventy miles off. On the 10th October, 1840, he wrote to her the following letter: "Dear Sister Antillico: Much to my mortification I heard that brother Henry was dead, and one of his children. I know that your situation is one of grief and difficulty. You had a bad chance before, but a great deal worse now. I should like to come and see you, but cannot with convenience at present. * * *I do not know whether you have a preference on the place you live on or not. If you had, I would advise you to obtain your preference, and sell the land and quit the country, as I understand it is very unhealthy, and I know society is very bad. If you will come down and see me, I will let you. have a place to raise your family, and I have more open land than I can tend; and on the account of your situation, and that of your family, I feel like I want you and the children to do well.” Within a month or two after the receipt of this letter, the plaintiff abandoned her possession, without disposing of it, and removed with her family, to the residence of the defendant, who put her in comfortable houses, and gave her land to cultivate for two years, at the end of which time he notified her to remove, and put her in a house, not comfortable, in the woods, which he afterwards required her to leave. A verdict being found for the plaintiff, for two hundred dollars, the above facts were agreed, and if they will sustain the action, the judgment is to be affirmed, otherwise it is to be reversed. ORMOND, J. The inclination of my mind is, that the loss and inconvenience, which the plaintiff sustained in breaking up, and moving to the defendant's a distance of sixty miles, is a sufficient consideration to support the promise, to furnish her with a house, and land to cultivate, until she could raise her family. My brothers, however, think that the promise on the part of the defendant was a mere gratuity, and that an action will not lie for its breach. The judgment of the court below must therefore be reversed, pursuant to the agreement of the parties. |